New Law restricts precautionary measures against the National State

14/05/2013

On April 30, 2013 a new law was published in the Official Gazette 26,854 (the “Law”) governing the implementation of precautionary measures in those cases where the National State or any of its decentralized entities (in general, the “Federal Government”) is a party.

The Law establishes certain procedural requirements that the applicant must indicate clearly and accurately when requesting a precautionary measure against the Federal Government: (i) indicate the damage that the measure is trying to prevent; (ii) the act or omission that produces such damage; (iii) the legal right or interest to be secured; (iv) the type of measure that is requested, and (v) compliance with applicable requirements in particularly to the extent required by the measure.

The Law also dictates that prior to solving the requested precautionary measure, the judge shall require a report prior to the Federal Government’s entity that is being sued to inform on the public interest compromised by the application.

Secondly, the Law mandates that an injunction against the Federal Government have a reasonable term limit. Therefore, the measure must not exceed six (6) months in ordinary proceedings, or three (3) months in summary cases and expeditious constitutional cases. However, in those cases in which the term set for the measure has elapsed, at the request of a party, and after evaluation of the public interest involved in the process, the court may extend it for a specified period not exceeding six (6) months. On the other hand when pending the exhaustion of administrative procedures, the limit of validity of the injunction will run until the notification of the administrative act that terminates the administrative procedure.

Consequently, the Law provides that a judge shall not issue any precautionary measure which affect, impede, compromise, distract or in any way disturb the assets or equity of the Federal Government. Similarly, judges may not impose civil pecuniary personal burdens to public officers.

In this vein, the Law imposes a payment of a bond before granting an injunction. It may consist of a real or personal surety. The verbal surety is admissible only in the case of socially vulnerable persons or the dignity of life is compromised as described by the American Convention on Human Rights.

Third, the Law sets out the types of precautionary measures that can be obtained:

1) Suspensions of the effects of State actions, crediting the damage that may cause the act in question, the verisimilitude of the right claimed, the verisimilitude of illegitimacy, the lack of impact to the public interest and also that the suspension of the effects of the act does nor produce legal effects or material irreversible effects.

2) Positive Action, which aims to impose involves performing a certain behaviour to the public entity defendant.

Finally, the National Government and its decentralized entities may request the application of injunctive relief in any kind of process. For this to occur the following conditions must be present: (i) there is a risk of developing certain and imminent harm to the public interest, state property or other property rights, (iii) that there is verisimilitude of the right claimed and the alleged illegitimacy and (iv) suitability and necessity in relation to the subject of the main claim. It must be said that neither the Federal Government nor its decentralized entities will be due on any bond them.